Supreme Court Should Expand Voting Rights for Citizens, Not Help Limit Them

As the 2010 Tea Party "wave" mid-term election resulted in Republicans controlling the governorships and state legislatures in many states, we saw a national GOP effort to suppress the votes of Democratic voting groups. For the most part, the effort failed. The federal government and some state courts struck down many efforts to legally deny voting, particularly in battleground states.

Yet, many states and many voting obstacles for non-Republican demographic voting groups were still put into place. It is hard to know how many US citizens were inhibited from voting based on such laws and what the presidential vote might have been (along with other races) had there been a system in place nationally that guaranteed the right of a citizen to vote.

But given the redistricting that occurred at the state legislature level after 2010, just as it did in congress, we are likely to see repeated efforts to deny the most basic right of citizenship – the right to vote – based on an utterly false narrative that otherwise there would be massive voter fraud. This effort will likely continue, unless perhaps Democratic governors are elected in states that currently have a GOP government monopoly, until reapportionment occurs in 2021.

Indeed, there have been a number of trial balloons that at least some Republican controlled states -- most notably as articulated by the GOP secretary of state in Ohio – might move to award state electoral votes by congressional district (currently only in effect in Maine and Nebraska). This would have meant Obama, who won the popular vote in Ohio, would have decisively lost the electoral vote to Romney because of the large number of gerrymandered Republican congressional districts in that state. (In the new congress, there will be four Democratic congressional representatives and 12 Republicans from the Buckeye State.)

It is within this context, as legal analyst Jeffrey Toobin points out in The New Yorker, that a Supreme Court case regarding ensuring the right to vote takes place. Toobin writes:

Next month, the Supreme Court will take up a challenge to the Voting Rights Act of 1965, the most effective law of its kind in the history of the United States. A century after the Civil War, the act, in abolishing many forms of discrimination employed by the Southern states, such as poll taxes and literacy tests, finally turned the legal right for African-Americans in those states to vote into an actual right to vote. Bipartisan congressional majorities have reauthorized the law four times, most recently in 2006. (It passed the House overwhelmingly and the Senate unanimously, and was signed into law by George W. Bush.) The question now is whether the Supreme Court will strike down the Voting Rights Act as a violation of states’ rights.

Toobin notes that Chief Justice Roberts has made comments from the bench indicating that he is sympathetic to striking down the Voting Rights Act.

Toobin adds:

In a way, Chief Justice Roberts has a point; the South is no longer all that different from the rest of the country. But that’s not so much because the South is now better—the open racism of the years before 1965 is gone—as because the rest of the country is now worse. It would be a sad irony if the Supreme Court struck down the Voting Rights Act because it regulates too much in too many places, when the truth is that it regulates too little in too few.

Although the 5-4 general GOP majority on the Supreme Court may return to arguing the issues of states' rights which goes back to the Confederate States and original Articles of Confederation (which were replaced by the US Constitution – the document that the Supreme Court is supposed to be using to decide cases that appear before it), the issue before the court is one of a national right – the most fundamental in a democracy – of citizens of this nation to vote without obstruction.

The argument that you won't hear before the highest court in the land is what is really the sub-text of this challenge to the Voting Rights Act: are US citizens who believe that this is a white Christian nation able to create barriers for non-white, poor, and non-Christian citizens to decide who is going to run their government?

Does the Constitution guarantee a resilient democracy that allows all citizens the right to participate in determining their governance, or only people who look like the founders?

That is what is the "case" before the Supreme Court in terms of the Voting Rights Act, but you won't hear it articulated in the legal arguments.